CONSTITUTIONAL CRIMINAL PROCEDURE ISSUES AND TRAFFIC STOPS
A Presentation of the
Texas Municipal Courts Education
CenterMunicipal
Prosecutors Conference
2009
Tom BridgesPortland, Texas – with slight,
unauthorized modification by Geary Reamey
Amendment Four:The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Art. 1, Section 9,Texas Constitution
The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures or searches, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.
None of the following concepts and principles involve use of a warrant
While the courts prefer warrants, obtaining warrants is seldom practical or safe during traffic stops
Consequence: It is our burden to demonstrate legality of stops, searches, and seizures
Reasonable suspicion of criminal activity
(such as DWI)Probable cause
of criminal activity(such as traffic
violation in officer’s view)
Authorized roadblocks and checkpoints
Community caretaking
function
What are some legal bases for stops of vehicles?
Reasonable suspicion that weapon is
in vehicle
Consent
Search incident to arrest
What are some legal bases for searchinglegally stopped vehicles?
Inventory
Probable cause to believe contrabandor evidence of crime
is in vehicle
Law Enforcement / Citizen Contact
Voluntary encounter No suspicion required
Temporary detention“Terry Stop”
Arrest
Reasonable suspicion required
Probable cause required
Law Enforcement / Citizen Contact
Temporary DetentionsCommunity CaretakingRoadblocks
Arrests
Fourth Amendment“Seizures”
= Reasons Required
Voluntary Encounters
I’m sure I have NOProbable
Cause
What can I do?
I know these guys are up to something illegal, but . . .
Temporary DetentionA Fourth Amendment “seizure”
Requires individualized suspicion focusing on individual detained
Suspicion must be based on crime-related activity
Detention necessary to determine if suspicion is justified – to investigate
Temporary Detention
Terry v. Ohio, 392 U. S. 1 (1968)Officer’s observation of two individuals suspected of “casing” a store (planning a robbery) leads to official action: detaining to investigate and pat down for weapons.
“STOP and FRISK” is born!
Temporary Detention
Sometimes referred to as a “Terry Stop,” it requires less than probable cause, but still a minimum of articulable facts that make it reasonable to suspectthat someone is engaged in crime-related activity.
Temporary Detention
“REASONABLE SUSPICION”
• Suspicion for which an officer has reasons. Reasons that can be explained.
• Suspicion that may be affected by officer’s training and experience.
Temporary Detention“Particular facts and inferences rationally drawn from
those facts that, when viewed under the totality of the circumstances and in light of the officer's experience, create a reasonable suspicion that criminal activity is afoot.” Terry v. Ohio (U. S. Supreme Court, 1968)
“This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” U. S. v. Arvizu (U. S. Supreme Court, 2002)
Temporary Detention
The Texas Test for Reasonable Suspicion:1. Activity out of the ordinary2. Detain individual connected
with activity3. Activity is crime-related
Temporary Detention
An investigative tool for law enforcement,useful in two circumstances:
1.Stop and detain to investigate
2.Continue to detain to investigate
Example:1. Stop and detain“Drunk car”
Vehicle observed to be 1. weaving, but within lane 2. proceeding at speed slower than
traffic flow3. driver making jerky, uncoordinated
correctionsYET, no offense seen by officer . . .
Example:1. Stop and detainCar in Suspicious Place
Vehicle observed 1. emerging from behind strip shopping
center at 3:00 a.m.2. lights off until leaving parking lot3. all stores closed, only security lights on4. officer knows of recent burglaries in
same neighborhood
Example:1. Stop and detain“BOLO” RE: VEHICLE USED IN ROBBERY
Dispatcher relays info from officers at scene of robbery describing location, suspects, vehicle used and direction of travel . . .
Patrol officer sees vehicle matching description, with matching number of occupants, going in described direction away from general area of robbery
Example: 2. Continue to detain
Assume vehicle stopped for “Drunk car”facts (previous slide) but upon investigationofficer learns 1. driver not intoxicated2. after running plate, dispatcher advises
vehicle matches description of one used minutes before during robbery
3. vehicle occupants unusually nervous and furtive
Temporary detention“Terry Stop”
Temporary Detention -- Options
Detain individual for a reasonable period of time to satisfactorily account for his activity
Make reasonable investigative inquiries, i.e.,request identity, reason for being in area, explanation of suspicious conduct
Transport detainee to possible crime scene
Seek consent for pat down or search
Interview (No “Miranda Warning” is required)
“Temporary”
• A detention last only for a “reasonable time”
• The length is limited by the purpose of the detention
• Every moment of the detention must be supported by r.s.
• When r.s. runs out, the seizure ends
“Traffic Stops”
• Based on probable cause that an offense has occurred (officer observed conduct)
• Analyzed as investigative detention, not an arrest, unless and until individual taken into custody (even if right to arrest exists from beginning)
• “Reasonable” period of time to take care of business related to offense(s)
“Pretext” Stops
Stop (or arrest) for one reasonMotive is for another reason
No problem if initial reason is lawful standing alone
The constitutional reasonableness of traffic stops does not depend on the motivation of the officers involved.
If objectively valid reasons can be given to support a stop, subjective intent is not relevant.
Whren v. United States,517 U.S. 806, (1996).
“Pretext” Stops
Stops Without Suspicion
Vehicles may sometimes be lawfully stopped notwithstanding there is no reason to suspect wrongdoing on behalf of occupants: Community Caretaking Roadblocks/Checkpoints
To “protect and serve” includes looking out for welfare and safety of citizens.
That may necessitate stopping to investigate -- not suspected criminal activity, but whether somebody needs
protection, care or assistance.
Community Caretaking
Crime fighting is not the only function of police.
Community CaretakingUnited States Supreme Court:Cady v. Dombrowski, 413 U.S. 433 (1973)Dombrowski (who had identified himself as a Chicago
policeman) had a one-car accident near a small Wisconsin town and was taken to a hospital; the police had the car towed. Early the next day, an officer searched the car to retrieve a service revolver to prevent it’s being stolen or used illegally. Instead, the search produced murder evidence incriminating to Dombrowski.
Texas Court of Criminal Appeals:Wright v. State, 7 S.W.3d 148 (1999)Patrol officer observed passenger of passing vehicle vomiting
out window, stopped vehicle to render assistance, discovered marihuana in vehicle in plain view.
Community Caretaking• Officer reasonably believes that, considering
totality of circumstances, a person is in need of help
• Subjective motivation is significant (concern for safety and welfare of individual or community)
• Officer is not engaged in detection, investigation, or acquisition of evidence
• May not search incident to a vehicle stop unless necessary to address concern that justifies the stop initially
Some factors to be considered according to Wright v. Texas:
(1) the nature and level of the distress
(2) the location of the individual
(3) whether individual alone or has access to assistance from others
(4) extent of danger to self or others
Community Caretaking
Ordering Occupants Out of Car
Pennsylvania v. Mimms,434 U.S. 106 (1977)
An officer may, as a matter of course, order the driver of a lawfully stopped vehicle to exit his vehicle.
Reason: officer’s safety
Maryland v. Wilson,519 U. S. 408 (1997)
Extends Mimms to the passengers of a vehicle stopped to investigate driver’s conduct
However, this is for officer’s safety and control of contact. Some cases say officer may NOT require ID or other seizure-related activities unless and until each is suspected individually.
Ordering Occupants Out of Car
Q: Who gets arrested?A: All whom officer has probable cause to
believe may be involved in commission of an offense
Maryland v. Pringle,540 U.S. 366 (2003)
Seizing Occupants:Arrest
“Pretext” Arrests
Q: Does the Fourth Amendment prohibit custodial arrest for fine-only traffic offenses?"
A: No, if allowed by state law
Atwater v. City of Lago Vista, 532 U.S. 318 (2001)
Seat belt violation by and arrest of “soccer mom” driving vehicle occupied by children.
Atwater, continued . . .As with Whren, ultimate motive of arresting
officer not relevant as long as officer has probable cause that individual arrested has committed offense for which state law permits arrest.
Questionable judgment of arrestingofficer jeopardized use of this tool in legitimate cases.
“Pretext” Arrests
Search Incident to Arrest
• General rule: A search without warrant of a person and his immediate area following an arrest is reasonable.
• Purposes: (1)To remove any weapons that arrested person might seek to use, and (2) to prevent concealment or destruction of evidence of a crime
Search Incident to Arrest
General Principle:Chimel v. California, 395 U.S. 752 (1969)United States v. Robinson, 414 U.S. 218 (1973) Applied to Vehicles:New York v. Belton, 453 U.S. 454 (1981)Thornton v. United States, 541 U.S. 615 (2004) Arizona v. Gant, 129 S.Ct. 1710 (2009)
Search Incident to Arrest
Full custody arrest as prerequisite:
The justifications for the search enumerated in United States v. Robinson, do not exist in traffic stops wherein citations are issued in lieu of custodial arrests.
Knowles v. Iowa, 525 U. S. 113 (1998)
Search Incident to Arrest
New York v. Belton: After arresting any occupant of a vehicle . . .
Officers may examine the contents of any containers found within the passenger compartment.
“Containers” denotes any object capable of holding another object, including closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing and the like.”
Search Incident to Arrest
• Arizona v. Gant: Search of vehicle interior incident to arrest is not allowed if the arrestee has no access to that space (e.g., he is handcuffed and locked in back seat of patrol car).
Frisk Incident to Terry Stop
Pat Down or Frisk• Must be incident to lawful detention• Officer must be reasonably
concerned that individual detained is armed and dangerous
• Officer must be able to “articulate” that concern in court
Frisk Incident to Terry Stop
• Officer need not be “afraid,” only reasonable to be concerned about presence of weapon
• May not justify by “standard procedure”• May not justify by blanket, boilerplate
statement, “for officer safety”• Weapon may be returned if not illegal and
no arrest results
Frisk Incident to Terry Stop
A “pat down” of the outer clothing of theperson, or personal articles such as apurse, in order to see if he/she has aweapon.
Purpose is to allow the officer to pursue investigation without fear of violence, not to discover evidence -- it is not a “search.”
Frisk Incident to Terry Stop
If object suspected to be weapon, officer may investigate further to determine whether or not is weapon, even if necessary to go into pocket.
If object not suspected to be weapon, officer must have probable cause it is contraband without further investigation (“Plain feel”).
Frisk Incident to Terry StopQ: What if officer has reasonable suspicion
that vehicle has weapon accessible to occupant during stop?
A: Officer may “frisk” the vehicleMichigan v. Long, 463 U.S. 1032 (1983)Officers may search the passenger compartment ofan automobile, limited to those areas in which aweapon could have been placed or hidden, if theyhave reasonable belief that weapon is present.
Consent
A waiver of one’s 4th Amendment rights, like a confession is a waiver of one’s 5th Amendment rights.
If State is to show that seized evidence was discovered while conducting a consent search, it has the burden to prove that
Consent
the consent was from someone with an expectation of privacy in the place searched;the consenting party had common
authority with others if more than one person shared control of premises; andthe consent was voluntary; it was
informed and not coerced.
Consent
Good when consequences are explainedBetter when request witnessed by
third partyBest when written form usedSUPER good when recorded
Consent
May be limited as to scope by consenting partyMay be withdrawn at any timeReason(s) to request consent not
necessary Officer must be “legitimate” at time
of request
Consent
Joint use, common authority:• Valid as against the absent, non-consulted
personUnited States v. Matlock,415 U.S. 164 (1974)
• NOT valid against present, objecting personGeorgia v. Randolph, 547 U.S. 103 (2006)
Vehicle Searches w/ Probable Cause
Carroll v. United States, 267 U.S. 132 (1925)
No warrant needed if:1. Probable cause* to believe contraband
is somewhere in the vehicle2. Exigent circumstances prevent
obtaining warrant
* Probable CauseFacts and circumstances that make it
more likely than not that . . .A particular person committed, or is
committing, a crime (for an arrest)or
A particular thing will be in a particular place (for a search)
Vehicle Searches w/ Probable Cause
Pennsylvania v. Labron, 518 U. S.938 (1996)State v. Guzman, 959 S.W.2d 631(Tex. Crim. App. 1998)If vehicle is readily mobile:
1. Probable cause2. Exigent circumstances
Vehicle Searches w/ Probable Cause
Maryland v. Dyson,527 U.S. 465 (1999)
An officer need only show probable cause that contraband is in a vehicle to justify a search without a warrant. There is no need for a separate finding of “exigency”.
United States v. Ross, 456 U.S. 798 (1982)
If officer acquires probable cause to believe there is contraband somewhere in the vehicle, every container and cavity in or on the vehicle may be searched that is reasonably capable of concealing the contraband.
Bumper-to-bumper, no less thoroughly than if pursuant to warrant.
Vehicle Searches w/ Probable Cause
Vehicle Searches w/ Probable Cause
Wyoming v. Houghton, 526 U.S. 295 (1999)
Police officers were entitled to search an automobile passenger's belongings, without probable cause to search those specific items, because they had probable cause to believe the vehicle contained contraband.
Vehicle Searches w/ Probable Cause
Using a dog on a traffic stop to acquireprobable cause:Illinois v. Caballes, 543 US 405 (2005).• While officer still writing warning ticket,• Dog alerted to presence of Marihuana.• Sup. Ct. said no intrusion beyond the
original purpose of the stop, no problem• No requirement that officer have
articulable suspicion as predicate to dog sniff
Inventories
• Non-searches – administrative procedures used to identify the presence of property of value.
• Property inventoried expected to be returned to owner/possessor.
• May not be used as subterfuge for search; purpose not for discovering evidence of criminal offense.
Inventories
Purposes for inventories:Protection of the owner's property
Protect police against false claims of theft
Protection of police and public from dangerous items in vehicle
Inventories
• Not as extensive as searches based on probable cause
• Evidence discovered during inventory – may be seized pursuant to plain view
rule;– provides probable cause to search for
more
Inventories
If evidence discovered during inventory, State must show:
1. Property inventoried was lawfully in police custody;
2. Department has established procedures for inventorying impounded property; and
3. Procedures were followed and written record prepared reflecting property found present.
Brendlin v. California127 S. Ct. 2400 (2007)
A passenger in a vehicle, like the driver, has been seized within the meaning of the Fourth Amendment when the police make a traffic stop of the vehicle. The passenger may, therefore, challenge the stop’s constitutionality.
RECENT CASES UNITED STATES SUPREME COURT
Arizona v. Johnson, U.S. Supreme Court 2009)Passenger, lawfully “seized” because vehicle legally stopped (Brendlin v. California) and asked to exit vehicle (Maryland v. Wilson) may, during period of lawful detention, be frisked if officer has usual reasons to justify frisking suspects (Terry v. Ohio).
RECENT CASES UNITED STATES SUPREME COURT
Virginia v. Moore,No. 06-1082, U. S. Supreme Court, April 23, 2008
The Fourth Amendment does not require the suppression of evidence obtained incident to an arrest that is based upon probable cause, even if the arrest violates a provision of state law.
RECENT CASES UNITED STATES SUPREME COURT
Top Related